Opinion
06 Civ. 2352 (NRB).
November 17, 2006
Counsel for Appellants, Michael M. Fay, Esq., Kasowitz, Benson, Torres Friedman LLP, New York, NY.
Counsel for Appellees, Karen E. Wagner, Esq., Davis Polk Wardwell, New York, NY.
MEMORANDUM AND ORDER
In late 2001, Argentina found itself in a deep economic crisis. To deal with this crisis, amendments to Argentine bankruptcy laws were enacted, among which was the creation of anacuerdo preventivo extrajudicial, or "APE", that allows for non-consenting parties to be bound by a restructuring agreement after it is negotiated and approved by a requisite amount of debt holders. Telecom Argentina ("Telecom" or "appellee") was not immune from financial difficulty; in 2002, they were forced to stop payments on the principal and interest of their $3.3 billion dollars of debt. After extensive notice to creditors (who had formed a creditors' committee) and filing the appropriate disclosures and plans with, inter alia, the United States Securities and Exchange Commission, the APE was approved by an Argentine court on May 26, 2005. Out of the total outstanding debt, 82.4% of the debt holders, representing 94.4% of the principal face amount of debt, consented to the APE.
Familiarity with the facts, as set forth in the Bankruptcy Court's opinion below, is assumed.
Faced with only one remaining objector — the appellant in the instant case — Telecom commenced a proceeding in the Bankruptcy Court for the Southern District of New York to approve and enforce, under 11 U.S.C. § 304, the APE approved by the Argentine court. Following a trial, Bankruptcy Judge Burton R. Lifland, in a 63-page Order and Judgment ("Order") setting forth findings of fact and conclusions of law, confirmed the petition on February 24, 2006. This appeal followed.
Argo (sometimes "appellant") is a Cayman Islands-based emerging markets fund which owns approximately $35 million dollars of Telecom-issued debt. Appellant seeks reversal and denial of the confirmation petition, or, in the alternative, reversal with remand to the Bankruptcy Court for evidentiary hearings on the financial condition of Telecom and on whether the APE, as applied in this case, is contrary to fundamental principles of United States law. For the reasons set forth below, we deny the appeal and affirm the Bankruptcy Court's exhaustive February 2006 Order.
All of this debt was purchased after October 29, 2003; some was purchased after the approval of the APE by the Argentine court.
It is not disputed that this Court has jurisdiction over the instant appeal pursuant to 28 U.S.C. § 158(a)(1).
DISCUSSION
I. Standard of ReviewThe Bankruptcy Court's grant of comity to the decision of the Argentine court is reviewed under an abuse of discretion standard. Argentinian Recovery Co., LLC v. Board of Directors of Multicanal S.A., 331 B.R. 537, 543 (S.D.N.Y. 2005); Bank of New York v. Treco (In re Treco), 240 F.3d 148, 155 (2d Cir. 2001). However, we review the legal determinations of the Bankruptcy Court de novo and the factual determinations under a clearly erroneous standard. See, e.g., In re Financial News Network Inc., 980 F.2d 165, 169 (2d Cir. 1992); see also Fed.R.Bankr.P. 8013. A bankruptcy court's determinations of mixed questions of law and fact are also renewed de novo. In re Enron Corp., 306 B.R. 33, 37 (S.D.N.Y. 2004).
Determination of a foreign country's law is an issue of law. Fed.R.Civ.P. 44.1; Bassis v. Universal Line, S.A., 436 F.2d 64, 68 (2d Cir. 1970). While Fed.R.Bankr.P. 8013 instructs that "regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses," we are mindful that the Bankruptcy Court's "opportunity to assess [foreign law expert] witnesses' demeanor provides no basis for a reviewing court to defer to the trier's ruling on the content of foreign law," because "it is not the credibility of the experts that is at issue, it is the persuasive force of the opinions they expressed." Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998).
Evidentiary and discovery rulings of the Bankruptcy Court are reviewed under an abuse of discretion standard. Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004), cert. denied, 126 S. Ct. 355 (2005); Schering Corp. v. Pfizer Corp., 189 F.3d 218, 224 (2d Cir. 1999).
II. Argo's Arguments on Appeal
Argo argues that the Bankruptcy Court made four principal errors. Specifically, Argo claims that: (1) res judicata should not have barred consideration of Argo's objections to the petition; (2) comity should not have been afforded because the APE Approval Order violated the laws and public policies of the United States; (3) the APE order does not provide just treatment to creditors; and (4) the Bankruptcy Court's exclusion of expert witness testimony and denial of discovery constituted an abuse of discretion. We deal with each issue seriatim.
Telecom argues for the first time on appeal that Argo, as a beneficial owner of the notes, has no standing to sue. Even assuming that the failure to raise this argument below does not constitute a waiver, it is unsupported by the bankruptcy rules, statutes, and case law. See Fed.R.Bankr.P. 1011; 11 U.S.C. § 1109(b); In re Board of Directors of Multicanal S.A., 307 B.R. 384, 387 n. 2 (Bankr. S.D.N.Y. 2004).
A. Objection to Confirmation of the § 304 Petition on Res Judicata Grounds
Argo contends that they were denied the opportunity to object in the APE proceeding on grounds relating to Telecom's financial condition and therefore that the Bankruptcy Court's refusal to admit such evidence makes the application of res judicata improper. We disagree.
Res judicata will bar a party from relitigating issues when that party had a "full and fair opportunity" to litigate the issue in a prior proceeding. See, e.g., Bank of India v. Trendi Sportswear, Inc., 239 F.3d 428, 439 (2d Cir. 2000). However, res juidicata is inapplicable if "formal or jurisdictional or statutory barriers precluded plaintiff from asserting its claims in the first action." Computer Associates International, Inc. v. Altai, Inc., 126 F.3d 365, 370 (2d Cir. 1997).
However, as noted by the Bankruptcy Court, the "finality interests of res judicata are particularly important in the bankruptcy context, where numerous contending claims and interests are gathered, jostle, and are determined and released." In re American Preferred Prescription, Inc., 255 F.3d 87, 94 (2d Cir. 2001) (quoting Corbett v. MacDonald Moving Services, Inc., 121 F.3d 82, 91 (2d Cir. 1997)). With regard to foreign bankruptcy proceedings, "[s]o long as a creditor has notice of the confirmation proceedings, that creditor may not relitigate post-confirmation an issue which could have been objected to pre-confirmation." In re Petition of the Board of Directors of Hopewell International Insurance Ltd., 238 B.R. 25, 60 (Bankr. S.D.N.Y. 1999), aff'd 275 B.R. 699 (S.D.N.Y. 2002) (emphasis added).
Determination of the applicability of res judicata plays a part in the decision of whether or not comity should be afforded to a foreign bankruptcy proceeding, because the "rationale underlying the grant of comity to a final foreign judgment is that litigation should end after the parties have had an opportunity to present their cases fully and fairly to a court of competent jurisdiction." Cunard Steamship Co. Ltd. v. Salen Reefer Services A.B., 773 F.2d 452, 457 (2d Cir. 1985).
Here, the Bankruptcy Court rejected the premise of Argo's appeal when it concluded that "the evidence demonstrates that Argo could have objected to Telecom Argentina's eligibility to file an APE, as a pre-confirmation objection, and to the fairness or abusiveness of the substantive provisions of the APE, in connection with confirmation." Order ¶ 136. Further, the Bankruptcy Court found that "[e]ven if Argo had discovered grounds for attacking the APE after the order was final, Argo could have at that point attacked the APE. Creditors may bring claims under Argentina's Civil Code to challenge the validity of an APE fraudulently obtained or otherwise in violation of Argentine public order." Order ¶ 151. However, "[n]o such attack was brought in the Argentine courts, by Argo or any other creditor." Order ¶ 152.
More specifically, the Bankruptcy Court made numerous factual findings relevant to this issue:
While the Bankruptcy Court describes these as factual findings, we agree with appellant that most of the findings are more properly characterized as legal findings, see Opening Br. at 21, or at the minimum as mixed questions of law and fact. As such, review is de novo.
1. Argo had notice of Telecom's APE proceedings, as required by the APE court, Order ¶¶ 54, 127;
2. "[o]bjections unrelated to confirmation may be raised prior to the period in which the Argentine Court hears confirmation objections, and thereafter objections relating to the confirmability of the APE will be heard," id. ¶ 117;
3. "[n]on-confirmation objections that could be asserted prior to the period for submitting confirmation-related objections include objections based on an entity's eligibility, financial or otherwise, to be a debtor in an APE proceeding," id.;
4. "a creditor, such as Argo, could have objected to Telecom Argentina's APE on the ground that Telecom Argentina was not financially eligible to be a debtor as required by the APE law," id. ¶ 118;
5. Article 75, in addition to allowing objections based on either misrepresentation of assets and liabilities or else on the failure of the debtor to obtain the support and consent of the requisite amount of holders' approval for the restructuring, "also permits objections regarding whether the legal requirements of the APE had been met. This broad right stems from the second paragraph of Article 75, which states `When legal requirements have been met and no objections raised, the Court shall approve the APE,'" Order ¶ 121;
6. the 2002 Amendments to the APE law "brought into existence Article 52.4, which enables creditors to object to the confirmation of an APE on grounds that the APE is `abusive or fraudulent,'" id. ¶ 122;
7. "the concept of abusiveness is defined broadly," and "[c]reditors may question the abusive features of an APE on any ground," id. ¶ 123;
8. in the Telecom Argentina APE proceeding, "creditors had ample opportunity to object to the Telecom Argentina APE on all of the grounds now raised by Argo in this Court," id. ¶ 128;
9. another creditor objected on the specific ground that "the plan was abusive because Telecom Argentina could have paid more because creditors would have received more in a liquidation," and while this objection was not ultimately heard, it was because of procedural failings — namely, that it was deemed untimely. A "valid legal ground" had nonetheless been stated for which the court could have requested evidence regarding liquidation value, id. ¶¶ 133-135;
10. the Argentine Court found that the APE proposal "does not appear to be abusive, fraudulent, or discriminatory in accordance with the applicable legal regulations," id. ¶ 140 (citing the Argentine court).
The Bankruptcy Court thus found that the APE Approval Order "is entitled to res judicata and binds all affected creditors, both consenting and non-consenting," id. ¶ 153, and thus "an Argentine court would not enforce an order of this or any other court that was inconsistent with the Approval Order." Id. ¶ 154.
Argo now advances several arguments as to why the Bankruptcy Court incorrectly found that res judicata applies to bar relitigation of Argo's claims directed to Telecom's financial condition. Most significantly, Argo disputes the Bankruptcy Court's finding in paragraph 121 of a creditor's "broad right" to object under Article 75, arguing that it contravenes the "plain and unambiguous statutory pronouncement" that an objection "may only be based on the grounds of omission or exaggeration of the assets or liabilities or the absence of the majority required by Article 73." DR Tab 2 at Exh. A, p. 24. In essence, without presenting the argument to the Argentine court, Argo endeavors unpersuasively to argue that the Argentine court would have determined that liquidation value was irrelevant to abusiveness.
Opening Br. at 22.
Article 75 reads in relevant part: "The objection must be filed within the ten (10) days following the last publication of notices and may only be based on the grounds of omission or exaggeration of the assets or liabilities or the absence of the majority required by Article 73. . . . When legal requirements have been met and no objections are raised, the Court shall approve the APE." DR Tab 2 at Exh. A, p. 24.
We decline appellant's invitation. The testimony of both appellant's expert, Dr. Javier Lorente, and appellee's expert, Dr. Julio César Rivera, make clear that creditors may object on various grounds and are not limited to those listed in Article 75. Dr. Lorente testified that a creditor may object to the confirmation of an APE because it is abusive or fraudulent, and that an objection that a debtor could have paid more in a liquidation falls within this allowance. See Order ¶¶ 122-124, 128, 133. While Dr. Lorente testified that an Argentine court is not obligated to consider liquidation value in an APE proceeding, see DR Tab 32 at 91:14-16, both experts agreed that an objector could raise that issue before the court.
Specifically, on cross examination, Dr. Rivera testified:
Q: Is it true that you testified on Saturday that in response to the question of whether a creditor could object under Article 52(2)(b)(4), the creditor can state that the APE is abusive or fraudulent. What is abusive or fraudulent and especially what is abusive are standards that have to be applied in every specific case. And you went on to say, the creditor could question the abusive features of an APE with all kinds of reasons. That is not limited. And then you go on to say, there is nothing against the concept that within the argument the idea would include that the results of the liquidation will be better. Is that accurate?
A: Yes, it is.
DR Tab 32 at 76:12-77:5.
Appellant seeks to distinguish this clear quote with another equally clear passage from Dr. Rivera's cross that immediately preceded this interchange:
Q: Isn't it true that a creditor may raise in court in Argentina all kinds of reasons that an APE is abusive?
A: Yes. The — like Dr. Lorente said in his declaration, the creditors have the right to call attention to the judge about the abuse [or] fraud, and of course they can make all kinds of argument[s].
Q: Right. So they can raise an argument that the liquidation value is higher than what's proposed under the APE, correct?
A: Yes, they can do it. The question is if the court will hear or not this argument.
Q: But you are not aware of any case law that says that a creditor in an APE can't raise an issue about the liquidation value, right?
A: Yes, that is correct.
Q: There are no cases that say you can't do it?
A: No, expressly no. Of course.
Id. at 74:24-75:25.
Thus, far from being "entirely unpersuasive", see Reply Br. at 4, we find Dr. Lorente's testimony, as corroborated by Dr. Rivera's, to clearly demonstrate that under Argentine law, creditors are entitled to raise objections to confirmation of an APE based on liquidation value. As such, there were no "formal or jurisdictional or statutory barriers" which precluded appellant from raising its objections in the APE proceeding.
For this reason, appellant's cite to Davidson v. Capuano, 792 F.2d 275 (2d Cir. 1986) is inapposite. In that case, the court found that res judicata should not bar raising an issue for the first time if the only alternative was to have "knowingly assert[ed] a claim that is improper" in the first forum. Id. at 281. Simply, the would-be objection at issue here would not have been "improper" to raise.
Furthermore, we emphasize that a finding that res judicata applies is not predicated on a determination that the original court necessarily need have granted the possible claims; rather, it is sufficient that the claimant had the opportunity to properly raise his objections. Hopewell, 238 B.R. at 60. Here, appellant had notice of the confirmation proceedings. It could have objected pre-confirmation, but chose not to do so. It may not therefore relitigate this issue now. Id. We therefore find that the doctrine of res judicata applies to bar Argo from raising such objections for the first time in the Bankruptcy Court.
Appellant's two other contentions, that: (1) "the Bankruptcy Court was also incorrect in concluding that after confirmation of Telecom's APE, creditors may bring claims under Argentina's Civil Code to challenge the validity of an APE fraudulently obtained or otherwise in violation of Argentine public order," Opening Br. at 25 (internal punctuation omitted), and (2) that Argentine insolvency law does not provide a mechanism for challenging an APE proponents' "eligibility to become a debtor," id. at 27, are rejected for the same reasons.
B. Objection to Confirmation of the § 304 Petition on Comity Grounds
Appellant argues next that the Bankruptcy Court erroneously held that the APE Order was entitled to confirmation under 11 U.S.C. § 304 because the policies underlying comity should have precluded its recognition. Specifically, appellant argues that three different aspects of United States law were violated by virtue of this confirmation: the Trust Indenture Act, the "best interests of creditors" test under 11 U.S.C. § 1129(a)(7), and the "good faith" requirement under 11 U.S.C. § 1129(a)(3). Again, we disagree.
Comity is "the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Hilton v. Guyot, 159 U.S. 113, 164 (1895).
"Federal courts generally extend comity whenever the foreign court had proper jurisdiction and enforcement does not prejudice the rights of United States citizens or violate domestic public policy." Victrix Steamship Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir. 1987) (citations omitted).
When contracting with a foreign entity, a person subjects himself to the laws of the foreign jurisdiction "affecting the powers and obligations of the corporation with which he voluntarily contracts." Canada Southern Railway Co. v. Gebhard, 109 U.S. 527, 537 (1883). As Judge Scheindlin found earlier in this case in the course of denying Argo's motion to withdraw the recognition petition from the Bankruptcy Court to the district court, "[t]his includes bankruptcy laws." In re Board of Directors of Telecom Argentina S.A., No. 05 Civ. 8803 (SAS), 2005 WL 3098934, at *3 (S.D.N.Y. Nov. 18, 2005).
Indeed, "American courts have long recognized the particular need to extend comity to foreign bankruptcy proceedings. The equitable and orderly distribution of a debtor's property requires assembling all claims against the limited assets in a single proceeding; if all creditors could not be bound, a plan of reorganization would fail." Victrix, 825 F.2d at 713-14 (citations omitted). Because of this policy, the Second Circuit has "repeatedly held that U.S. courts should ordinarily decline to adjudicate creditor claims that are the subject of a foreign bankruptcy proceeding." JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 424 (2d Cir. 2005). Thus, "deference to the foreign court is appropriate so long as the foreign proceedings are procedurally fair and . . . do not contravene the laws or public policy of the United States." Id. 1. Trust Indenture Act
15 U.S.C. § 77ppp(b). The TIA reads, in pertinent part:
[T]he right of any holder of any indenture security to receive payment of the principal of and interest on such indenture security, on or after the respective due dates expressed in such indenture security, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such holder.
While the TIA is "designed to vindicate a federal policy of protecting investors," Bluebird Partners, L.P. v. First Fidelity Bank, N.A. New Jersey, 85 F.3d 970, 974 (2d Cir. 1996) (citations omitted), the TIA cannot prevent the reorganization of a debtor under U.S. bankruptcy laws. In re Board of Directors of Multicanal S.A., 307 B.R. at 387 n. 2.
The Bankruptcy Court correctly held below that "a grant of comity does not depend upon the adherence to the Trust Indenture Act, which would prevent most reorganizations where a debtor has issued public debt." Order ¶ 208 (citations omitted).
Nonetheless, appellant contends that because "TIA-protected creditors are safeguarded against misuses of the U.S. bankruptcy laws by TIA-bound debtors through, among other things, Section 1129(a)(3) and (7)," and because "[n]o such safeguards exist under Argentine law," Opening Br. at 42, confirmation of the APE was contrary to public policy.
We need not discuss this at length. As Judge Scheindlin found earlier:
A recent section 304 proceeding involving an Argentine APE, In re Board of Directors of Multicanal S.A., [ 314 B.R. 486 (Bankr. S.D.N.Y. 2004) ("Multicanal")] addressed this very issue: whether the TIA bars the restructuring of a company's debt pursuant to an APE over the objections of a minority noteholder. In a well-reasoned decision, Bankruptcy Judge Allan L. Gropper held that "there is no real conflict" between the TIA and section 304. A noteholder's rights under the TIA are not inviolate — rights under a TIA-qualified indenture can be impaired in a U.S. bankruptcy case. If a foreign insolvency proceeding is entitled to comity under section 304, there is no principled basis for concluding that a noteholder's rights under the TIA should trump that proceeding. Foreign debtors need not grant recalcitrant minority noteholders absolute rights under the TIA that those noteholders would not have in a bankruptcy case in the United States.In re Board of Directors of Telecom Argentina S.A., No. 05 Civ. 8803 (SAS), 2005 WL 3098934, at *2 (S.D.N.Y. Nov. 18, 2005). We see no basis to depart from Judge Scheindlin's findings on this issue. 2. Best Interests of Creditors Test of 11 U.S.C. § 1129(a)(7)
The non-applicability of the TIA is not affected by appellant's observation that the TIA is backed up by the good faith and best interests of creditors requirements in United States restructurings. See Opening Br. at 34, 42.
The so-called "best interests of creditors" test is a requirement under 11 U.S.C. § 1129(a)(7) that "a [Chapter 11 reorganization] plan must provide that a creditor receives or retains property under the plan which is not less than the value it would receive under a Chapter 7 liquidation of the debtor." In re Gramercy Twins Associates, 187 B.R. 112, 124-25 (Bankr. S.D.N.Y. 1995) (citing cases).
Argo urges that United States courts have only "extended comity where the absence of a best interest analysis was of no prejudice to creditors." In Multicanal, the Bankruptcy Court approved a petition for recognition under § 304 of an Argentine APE order despite the lack of a mandatory liquidation analysis in the APE proceeding. Appellant attempts to distinguish Telecom, which they claim "has significant liquidation value and could pay its debts in full," Opening Br. at 39, from the debtor in Multicanal, which the court found "on the extensive record" to have "few hard assets [and which] would have little to distribute in a liquidation," 314 B.R. at 507.
However, in advocating that argument, Argo is relying on dicta.Multicanal does not hold that a debtor needs to have "few hard assets" for the absence of a best interests of creditors test to be acceptable. Rather, the holding of Multicanal is that "[t]here is no requirement that a foreign proceeding incorporate the conditions to confirmation set forth in § 1129 of the U.S. Bankruptcy Code." Multicanal, 314 B.R. at 506. "Under section 304 of the Bankruptcy Code, the rule of the foreign jurisdiction need not be identical to those of the United States but it must be substantially in accordance with United States bankruptcy law." Order ¶ 167 (internal citations and punctuation omitted). Thus, lack of a best interests analysis does not necessarily preclude recognition of a Section 304 petition.
As a fallback, appellant also cited at oral argument In re Treco for the proposition that such cases must be examined on a case-by-case basis. 240 F.3d at 154. Adopting this approach, we need not reach a broad holding that all APE proceedings are necessarily entitled to recognition under section 304. Instead, we find it sufficient to note that the argument raised by appellant — that this restructuring was fundamentally unfair — is advanced in the context of an APE proceeding that has already paid all creditors between 80-100% of the face value of their debt, and that appellant did not purchase any of Telecom's debt until after: (1) the economic crisis hit Argentina; (2) the 2002 APE liberalizing amendment was passed; and (3) Telecom had stopped paying the principal and interest on its debt. We also note that appellant will very likely make a profit from its strategic purchases irrespective of the outcome of the instant case. Moreover, the Bankruptcy Court found, inter alia, that as a result of the 2001 economic crisis in Argentina, "Telecom Argentina was being paid in a rapidly devaluing peso, was prevented from adjusting its rates, yet was required to pay its foreign financial debt obligations in foreign currency," the result of which was "a severe liquidity crisis." Order ¶ 4; see also Order ¶ 97. There is no basis to ascribe clear error to this finding. In sum, under these facts, we do not hesitate to conclude that the lack of a best interests of creditors test should not preclude affording comity to the APE order.
3. Good Faith Requirement of 11 U.S.C. § 1129(a)(3)
Argo next argues that the APE proceeding was not conducted in good faith. The requirement in 11 U.S.C. § 1129(a)(3) that a restructuring plan be "proposed in good faith and not by any means forbidden by law" is "incorporated into § 304 through the concept of comity and the requirement of § 304(c)(1) of `just treatment' of all holders of claims or interests," Multicanal, 314 B.R. at 507. "It is assumed that an APE should not be recognized in the United States if not pursued in good faith," and this determination "should be probed elastically and on a case by case basis." Id. (citations and quotations omitted).
As stated supra, we decline to find clear error in the Bankruptcy Court's extensive findings that the APE proceeded was initiated in light of a "severe liquidity crisis" or that the restructuring was in any way initiated in bad faith. We therefore reject appellant's argument that the APE proceeding was used not "to promote a necessary restructuring, but, instead, to enrich its shareholders." Opening Br. at 37.
We again point out that each debtor received between 80% and 100% of the face value of their outstanding debt under the APE plan.
Because the TIA does not control once a bankruptcy proceeding is commenced, and because neither the best interests of creditors test nor the good faith provisions of 11 U.S.C. § 1129 govern, we find that the Bankruptcy Court properly afforded comity to the proceedings of the Argentine court.
Appellant also argues that comity should not be afforded because Argentine insolvency law does not provide creditors "with broad rights of objection." Opening Br. at 37. This argument fails for the same reason as the same claim made on res judicata grounds. See supra at II.A.
C. Objection to Confirmation of the § 304 Petition on Just Treatment to Creditors Grounds
In addition to its comity argument, appellant asserts that the § 304(c)(1) criterion of "just treatment of all holders of claims against interests in [debtor's] estate" cannot be met in this case because "[c]reditors in Argentina are granted only limited objections and limited recourse against a majority-approved APE." Opening Br. at 43.
This criterion warrants little discussion, because appellant's argument is premised on the contention that strictly limited objections are allowed in an APE proceeding. See Opening Br. at 43. We have previously rejected that position in our discussion of the res judicata issue, see supra at II.A., and affirm the Bankruptcy Court's finding that the APE proceeding "provided holders of all affected claims with notice, due process and an opportunity to participate in negotiating the APE, in voting to approve the APE, and in the court-supervised approval process." Order ¶ 176.
CONCLUSION
For the foregoing reasons, we find that the Bankruptcy Court properly granted recognition of the APE proceeding. The appeal is therefore denied, and the February 2006 Order of the Bankruptcy Court is AFFIRMED.
Appellant's objections to the exclusion of expert witness testimony and denial of discovery are therefore moot.